DA 10-0178

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 35

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

TYRONE PAYNE,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DC 09-174

Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender, Garrett R. Norcott, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant

Attorney General, Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney, Jason Marks,

Deputy County Attorney, Missoula, Montana

Submitted on Briefs: January 12, 2011

 Decided: March 1, 2011

Filed:

__________________________________________

Clerk

March 1 2011
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 After moving from Connecticut to Montana, Tyrone Payne failed to register with 

the Montana sexual offender registry as required by law. He was arrested and charged 

with felony failure to register. Following a jury trial, he was convicted. Payne 

challenges the sufficiency of the State’s evidence, the admission of hearsay evidence, and 

the appropriateness of certain prosecutor remarks during closing argument. We affirm. 

ISSUES

¶2 A restatement of the issues on appeal is:

¶3 Did the District Court err in denying Payne’s motion to dismiss for insufficient 

evidence?

¶4 Did the District Court abuse its discretion when it allowed hearsay evidence over 

Payne’s objection?

¶5 Did the prosecutor invade the province of the jury by making remarks that 

constituted comments on the evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Prior to moving to Missoula, Montana, Tyrone Payne lived in Connecticut where 

he had been registered with that state’s sexual offender registry since January 1999. 

Upon relocating to Missoula at some time prior to December 2008, Payne did not register 

with the Montana sexual offender registry nor did he notify the Connecticut registry of 

his relocation.

¶7 On March 16, 2009, Payne was stopped in Missoula on a traffic violation. 

Officer Franke was one of the two officers participating in the stop. It is unclear from the 
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record exactly what discussions took place during this encounter because Payne’s and 

Franke’s testimonies are in direct conflict. What can be discerned is that during the 

traffic stop, the officers learned that Payne was a registered sex offender in Connecticut. 

Franke claims to have asked Payne if he was registered in Montana and that Payne told

him that Connecticut authorities advised he did not have to register in Montana. Payne 

claims no such discussion occurred. However, during this traffic stop, Franke contacted 

Detective Merifield of the Missoula Police Department and asked her to investigate 

whether Payne was required to register in Montana and whether he had done so. Payne 

was not arrested that night for failure to comply with Montana’s sexual offender 

registration laws.

¶8 Payne claims that on March 21, Franke found him in a bar and ordered him 

outside for questioning about his failure to register in Montana. Payne states he told 

Franke that his failure to register had not been a problem during their encounter on March 

16 and if he is supposed to register, just tell him. According to Payne, Franke told him to 

“figure it out.” Franke testified that he does not specifically recall this encounter. He 

recalls, however, that within a few days of his March 16 message to Merifield, Merifield 

got in touch with him and told him that Payne was required to register in Montana. On 

March 24, Franke found Payne and arrested him for felony failure to register. The 

Information was filed on April 8, 2009. On April 21, Payne entered a not guilty plea.

¶9 On September 9, 2009, Payne filed a stipulation that provided, among other 

things, that the jury would be told that he (Payne) had a duty to register in Connecticut 

and a duty to register in Montana but would not be told any of the details of the 
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underlying offense. The stipulation also informed the jury that at the time of his arrest in 

Montana there was no arrest warrant for Payne out of Connecticut. 

¶10 Also on September 9, 2009, Payne filed a motion in limine requesting that the

District Court preclude from evidence a document provided by the State of Connecticut 

Department of Public Safety. This document consisted of two pages—the first page was 

the Sex Offender Advisement of Registration Requirements signed by Payne on May 30, 

2008, and the second page was a notice that Payne was not in compliance with 

Connecticut law because he had failed to confirm his address as of September 23, 2008. 

Payne asserted that the evidence should be precluded based on hearsay, violation of the

confrontation clause, and surprise. The State objected to the motion.

¶11 The following day, just prior to the commencement of Payne’s trial and outside 

the presence of the jury, Payne’s motion in limine was discussed and the District Court 

reserved ruling on it. During the trial but before the court ruled on the motion, the State 

withdrew its objection and the court subsequently granted Payne’s motion. 

¶12 Officer Franke and Detective Merifield testified on behalf of the State. Neither 

Payne nor any other witness testified for the defense. During Merifield’s testimony, the 

prosecutor asked her if she learned during her investigation whether Payne was in 

compliance with Connecticut registration law. Payne’s counsel immediately objected, 

indicating that his objection “goes to the motion in limine.” An unrecorded sidebar 

occurred after which the District Court overruled Payne’s objection and allowed 

Merifield to continue. She testified that Payne was not in compliance with Connecticut’s 

registration laws.
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¶13 The jury rendered a unanimous verdict of guilt. Payne filed a timely appeal.

STANDARDS OF REVIEW

¶14 We review de novo a district court’s denial of a motion to dismiss for 

insufficient evidence. State v. Ommundson, 2008 MT 340, ¶ 10, 346 Mont. 263, 194 

P.3d 672.

¶15 We review rulings on the admissibility of evidence to determine if the district 

court abused its broad discretion. Clark v. Bell, 2009 MT 390, ¶ 16, 353 Mont. 331, 220 

P.3d 650.

DISCUSSION

¶16 Did the District Court err in denying Payne’s motion to dismiss for insufficient 

evidence? 

¶17 At the close of the State’s case, Payne moved to dismiss the case for insufficient 

evidence. Having stipulated that he had a duty to register and acknowledging that he had 

not registered within the time required by statute, Payne argued exclusively that the State

failed to prove that he acted “knowingly” when he failed to register in Montana. The 

District Court denied Payne’s motion.

¶18 On appeal, Payne again claims that the State failed to prove an essential element 

of the crime, i.e., that he “knowingly” failed to register. He argues that jurors were not 

presented with any evidence of his knowledge of the registration requirement. He also 

asserts that evidence presented to the jury showed that Officer Franke did not arrest him 

during their first or second encounters for failing to register because Franke himself was 

unsure of whether Payne was required to register.
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¶19 The State claims it presented evidence that Franke did instruct Payne to register. 

Furthermore it argues that even if Franke had not, “[i]gnorance of the law is no defense in 

Montana.” In other words, the State is not required to prove that Payne had been 

instructed to register; it need prove only that he knowingly failed to do so. Lastly, the 

State submits that Payne “knew” the following critical facts: he had previously been a 

registered sexual offender in Connecticut; he moved from Connecticut to Montana; he 

did not register in Montana. 

¶20 Section 46-23-507, MCA, in relevant part, provides: 

A sexual or violent offender who knowingly fails to register . . . under this 

part may be sentenced to a term of imprisonment of not more than 5 years 

or may be fined not more than $10,000, or both.

Under this, and other companion statutes, Payne was obligated to register as an offender 

in Montana within three days of entering Missoula County. See § 46-23-504(1)(c) and 

(d), MCA. It is undisputed that he failed to do so.

¶21 The criminal state of mind attributed to § 46-23-507, MCA, is “knowingly.” 

Section 45-2-101(35), MCA, provides three definitions of “knowingly.” In this case, 

the relevant definition was given to the jury in the form of a jury instruction by the

District Court: “A person acts knowingly with respect to a specific circumstance 

defined by an offense when the person is aware of that circumstance.” The court gave 

additional jury instructions on purpose and knowledge as well. Payne did not challenge 

the court’s jury instructions, and does not attempt to challenge them here. 

¶22 We are persuaded by the State’s argument that Payne is presumed to know the 

law of Montana. For at least a century, it has been the law in Montana that “ignorance of 
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the law is no defense.” State ex rel. Rowe v. District Court, 44 Mont. 318, 324, 119 P. 

1103, 1106 (1911), superseded by statute on other grounds in State ex rel Shea v. 

Judicial Standards Comm., 198 Mont. 15, 643 P.2d 210 (1982) (“If a person accused of a 

crime could shield himself behind the defense that he was ignorant of the law which he 

violated, immunity from punishment would in most cases result. No system of criminal 

justice could be sustained with such an element in it to obstruct the course of its 

administration.”). We reiterated this rule in State v. Trujillo, 2008 MT 101, ¶ 15, 342 

Mont. 319, 180 P.3d 1153, when we held that Trujillo unlawfully trespassed onto

another’s land despite his assertions that he had not passed through any gates or barriers 

intended to bar access. Similarly, in State v. G’Stohl, 2010 MT 7, ¶ 14, 355 Mont. 43, 

223 P.3d 926, we noted that “people are presumed to know the law” and will not be 

relieved of criminal liability for their failure to comply with it.

¶23 Under this analysis, it was Payne’s responsibility to determine if he was required 

to register with the Montana sexual offender registry. Conversely, it was not Franke’s 

duty to tell Payne whether or not he needed to register. Payne knew he was a sexual 

offender. He knew he registered in Connecticut and was subject to Connecticut’s statutes 

which expressly provide that “[i]f any person who is subject to registration under this 

section changes such person’s address, such person shall, without undue delay, notify the 

Commissioner of Public Safety in writing of the new address and, if the new address is in 

another state, such person shall also register with an appropriate agency in that state, 

provided that state has a registration requirement for such offenders.” Conn. Gen. Stat. 

§ 54-252(a). Payne moved to Montana. He knew he did not register with the Montana 
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sexual offender registry. During at least one of his encounters with Franke, the two men

discussed Payne’s status as a registered offender in Connecticut. While there is 

conflicting testimony as to whether Franke told Payne he had to register or just asked him 

whether he had registered, this conversation, at the very least, should have prompted 

Payne to determine the applicable Montana law. We cannot countenance his failure to do 

so on the ground that he did not know the law and Franke did not tell him. We conclude 

the jury had before it sufficient evidence to determine that Payne had “knowingly” failed 

to register.

¶24 Did the District Court abuse its discretion when it allowed hearsay evidence 

over Payne’s objection?

¶25 During the trial, Detective Merifield testified that Payne had been registered with 

the Connecticut registry but was not, at the time of trial, in compliance with his 

registration obligations in Connecticut. Payne objected to the testimony on the ground 

that it violated Payne’s previously-granted motion in limine. The District Court 

overruled Payne’s objection and allowed Merifield to continue with the same line of 

testimony. 

¶26 Payne argues on appeal that Merifield’s testimony, originally obtained by 

telephone from a Connecticut authority, was inadmissible “testimonial” hearsay that 

violated the confrontation clauses of the United States and Montana Constitutions. He

claims it was prejudicial and planted “a propensity inference with the jurors.”

¶27 The State counters that Payne may not now argue violation of the confrontation 

clause based upon Merifield’s testimony because Payne’s trial objection lacked 
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particularity—referring only to his “motion in limine” rather than the confrontation 

clause specifically. The State further asserts that the purpose of Payne’s motion in limine 

was to exclude from evidence the Connecticut Sex Offender Registry form signed by 

Payne in May 2008 in which Payne acknowledged, among other things, that if he moved 

to another state, he had to register with the appropriate registry for that state. The State 

opines that the motion in limine was “not broadly applicable to exclude any and all 

information regarding Payne’s registration requirements in Connecticut.” The State also 

argues that under State v. Canon, 212 Mont. 157, 687 P.2d 705 (1984), overruled on 

other grounds, State v. Allen, 2010 MT 214, 357 Mont. 495, 241 P.3d 1045, Merifield’s 

testimony was not testimonial hearsay. 

¶28 Hearsay is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted. 

M. R. Evid. 801(c). A declarant’s statements are presumed testimonial if they are 

knowingly made to a police officer or government agent. A statement is presumed 

non-testimonial if the declarant had “objective reason to believe” that the statement 

served only “to avert or mitigate an imminent or immediate danger” and the agent 

receiving the statement lacked intent to create evidence. State v. Mizenko, 2006 MT 11, 

¶ 23, 330 Mont. 299, 127 P.3d 458. “Testimonial hearsay statements are inadmissible 

unless the declarant is ‘unavailable’ for trial and the defendant had a prior opportunity for 

cross-examination.” State v. Spencer, 2007 MT 245, ¶ 16, 339 Mont. 227, 169 P.3d 384. 

¶29 The testimony delivered by Merifield at trial was obtained when she called the

Connecticut authorities during her investigation of Payne. The “declarant” in this case is 
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the Connecticut official with whom Merifield spoke. Presumably, upon reaching “the 

declarant,” Merifield identified herself as a Missoula Police Department detective 

conducting an investigation and asked about the status of Payne’s Connecticut 

registration. She was told that Payne was a former registrant but that his Connecticut 

registration was not current. She testified to the same at trial. While Merifield did not 

repeat the declarant’s words verbatim on the witness stand, the fact remains that the 

statement of the Connecticut official during the inquiry—that Payne was not in 

compliance with Connecticut registration requirements—was made knowingly to a 

government official for the purpose of creating evidence, and then presented at trial for 

the truth of the matter asserted. As such, it falls squarely within the analysis of Mizenko. 

Under these circumstances, Merifield’s statements pertaining to Payne’s Connecticut 

registration were testimonial hearsay. 

¶30 Relying on Canon, the State argues that Merifield’s testimony was not 

testimonial hearsay because she did not on the witness stand repeat any actual statement 

made by the declarant. In Canon, a police officer and an informant were together in a 

room when the informant knowingly and consensually recorded a telephone conversation 

with the defendant. Canon, 212 Mont. at 163-64, 687 P.2d at 708. At trial, and at a time 

when the informant was not available, the police officer attempted to testify that because 

the informant had agreed to tape the defendant, the standard for taping a conversation 

(i.e., one party to the conversation consents to the recording) was satisfied. Canon, 212 

Mont. at 163-64, 687 P.2d at 708. Canon challenged the testimony as hearsay arguing 

that the informant’s agreement to tape the conversation was being presented as the truth
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of the matter asserted. Canon, 212 Mont. at 163, 687 P.2d at 708. The Canon Court 

disagreed, however, and ruled that the officer’s testimony was not hearsay but merely 

established that an agreement had been made between the officer and the informant. The 

Court indicated that the officer “did not testify as to any statement made by [the 

informant].” Canon, 212 Mont. at 164, 687 P.2d at 709. The Court also stated that even 

had it been hearsay, it was not reversible error based on the informant’s subsequent 

testimony. Canon, 212 Mont. at 164, 687 P.2d at 709. We conclude that the holding in 

Canon is narrow and applicable only to the circumstances of that case. It is therefore 

inapposite.

¶31 As noted above, testimonial hearsay statements may be admitted if the declarant 

is unavailable for trial and the defendant had a prior opportunity to cross-examine the 

declarant. This exception does not apply to the case before us. It is undisputed that the 

State did not attempt to have any Connecticut official testify at trial, and therefore the 

issue of unavailability is not before us. Moreover, it is clear that Payne had no 

opportunity to cross-examine the individual with whom Merifield spoke. We therefore 

conclude the District Court erred in admitting this hearsay statement into evidence.

¶32 Having determined that Merifield’s testimony was hearsay, we next examine the 

State’s argument that Payne failed to sufficiently preserve the issue for appeal. As noted 

above, Payne’s motion in limine had two documents attached to it—(1) the Connecticut 

“Sex Offender Advisement of Registration Requirements” signed by Payne 

acknowledging his obligation to register in another state should he move, and (2) a 

Connecticut Sex Offender Registry form indicating that Payne was “not in compliance.” 
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Payne sought to keep these documents, and the information they contain, from being 

introduced in evidence and the District Court granted his motion. Merifield, however, 

testified directly to the fact that a Connecticut official told her that Payne was not in 

compliance with Connecticut registry requirements. 

¶33 M. R. Evid. 103 provides that “[e]rror may not be predicated upon a ruling 

which admits . . . evidence unless a substantial right of the party is affected, and . . . [i]n 

case the ruling is one admitting evidence, a timely objection or motion to strike appears 

of record, stating the specific ground of objection, if the specific ground was not apparent 

from the context.” (Emphasis added.) Under these circumstances, we conclude Payne’s 

objection to the testimony at trial—“goes to the motion in limine”—was apparent from 

the context and was sufficient to preserve this issue for appeal.

¶34 We now determine whether the court committed reversible error when it 

overruled Payne’s objection and allowed the challenged testimony.

¶35 In State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735, we stated that 

the first step in a reversible error analysis requires us to determine whether the error 

complained of is a “structural” error or a “trial” error. Van Kirk, ¶ 37. Structural error 

affects the “framework within which the trial proceeds,” and is automatically reversible. 

Van Kirk, ¶¶ 38-39. Trial error is “that type of error that typically occurs during the 

presentation of a case to the jury.” Van Kirk, ¶ 40. “Trial error is not presumptively 

prejudicial and therefore not automatically reversible.” Van Kirk, ¶ 40. Rather, it is 

subject to review under our harmless error statute, § 46-20-701(1), MCA. The admission 

of Merifield’s testimony here is a classic example of a trial error.
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¶36 Section 46-20-701(1), MCA, establishes: 

Whenever the record on appeal contains any order, ruling, or proceeding of 

the trial court against the convicted person affecting the convicted person’s 

substantial rights on the appeal of the cause, together with any required 

objection of the convicted person, the supreme court on that appeal shall 

consider the orders, rulings, or proceedings and the objections thereto and 

shall reverse or affirm the cause on the appeal according to the substantial 

rights of the respective parties, as shown upon the record. A cause may not 

be reversed by reason of any error committed by the trial court against the 

convicted person unless the record shows that the error was prejudicial.

¶37 To determine whether the admission of the evidence was prejudicial to Payne we 

look at whether there is a reasonable possibility that the tainted evidence might have 

contributed to his conviction. Van Kirk, ¶ 42. Following the guidance set forth in Van 

Kirk, we consider whether the inadmissible evidence is proof of an element of the crime 

for which Payne was charged. “Clearly, if the only evidence tending to prove an element 

of the crime is tainted, then reversal will be compelled.” Van Kirk, ¶ 45. However, if the 

“tainted evidence does not go to the proof of an element of the crime charged, and there 

is no other admissible evidence tending to prove the particular fact at issue, the admission 

of the tainted evidence will be deemed harmless only if the State demonstrates that no 

reasonable possibility exists that the admission of the tainted evidence might have 

contributed to the defendant’s conviction.” Van Kirk, ¶ 46. (Emphasis in original.)

¶38 Applying Van Kirk’s analysis, Merifield’s evidence did not go to an element of

Payne’s charged offense, as failing to comply with another state’s statutes is not an 

element of the crime with which Payne was charged. No untainted admissible evidence 

was presented to show that Payne was not in compliance with Connecticut’s registration 

laws. Therefore, for this evidence to be harmless, the State must demonstrate that there 
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was no “reasonable possibility” that the jury relied on Payne’s lack of compliance with 

Connecticut law to convict him of lack of compliance with Montana law.

¶39 The tainted testimony in this case raises a concern that the jurors could have 

concluded that Payne has a propensity for failing to comply with sexual offender 

registration laws—in other words, just as he failed to keep his Connecticut registration 

current, he failed to register in Montana. Payne, however, raised no propensity objection

in the District Court. As we have held many times, we will not put a district court in 

error for failing to address an issue or an argument that was not made before it. Prescott 

v. Innovative Res. Group, LLC, 2010 MT 35, ¶ 14, 355 Mont. 220, 225 P.3d 1253.

¶40 Reviewing the evidence to which Payne stipulated and the facts of this case, we 

conclude the jury had sufficient admissible evidence before it to support its verdict that 

Payne “knowingly” failed to register in Montana. For this reason, we conclude the 

District Court’s admission of inadmissible hearsay evidence was harmless error.

¶41 In summary, the court admitted inadmissible testimonial hearsay evidence over a 

proper trial objection. While this constituted trial error, applying the Van Kirk analysis 

we determine the testimony was not prejudicial to Payne and therefore harmless. 

¶42 Did the prosecutor invade the province of the jury by making remarks during 

closing argument that constituted comments on the evidence?

¶43 The prosecutor, during closing arguments, made multiple references that Payne 

“knew” he had an obligation to register with Montana but failed to do so. Payne argues 

that such remarks were inappropriate comments on the evidence and prevented Payne 

from receiving a fair trial. He acknowledges on appeal that he made no contemporaneous 
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objection at the time and asks that this Court exercise plain error review or, alternatively, 

review the issue as an ineffective assistance of counsel claim. We decline to do so. 

Payne has failed to demonstrate why plain error review of this issue is required in this 

case. As we have previously noted, we use the plain error doctrine “sparingly, on a 

case-by-case basis,” and only where failing to review the claimed error “may result in a 

manifest miscarriage of justice, may leave unsettled the question of the fundamental 

fairness of the trial or proceedings, or may compromise the integrity of the judicial 

process.” State v. Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996), overruled in 

part on other grounds, State v Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 

817. We conclude Payne has not met this threshold.

CONCLUSION

¶44 For the foregoing reasons, we affirm Payne’s conviction. 

/S/ PATRICIA COTTER

We Concur:

/S/ JAMES C. NELSON

/S/ BETH BAKER

/S/ MICHAEL E WHEAT

/S/ JIM RICE